Disclaimer Of Warranties; Limitation Of Liability
Although Mixmaster has attempted to provide accurate information on its website, it is your responsibility to review the information and determine its accuracy and applicability to you as an individual. Mixmaster assumes no responsibility for, and makes no representation or warranty of, the completeness, accuracy, reliability, timeliness or currency of the Mixmaster Software. Under no circumstances will Mixmaster be liable for any loss or damage, of any nature, caused by your reliance on, or use of information from, the Mixmaster Software. Mixmaster may change products or services mentioned at any time with or without notice.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE ADDITIONAL TERMS WITH RESPECT TO SPECIFIC SUBJECT MATTER OR AGREED TO BY MIXMASTER IN WRITING: THE MIXMASTER SOFTWARE, AND ALL INFORMATION, DATA, MATERIALS AND OTHER CONTENT (INCLUDING, WITHOUT LIMITATION, ALL SERVICES AND SOFTWARE) PROVIDED, GENERATED OR MADE AVAILABLE BY, WITH OR THROUGH THE MIXMASTER SOFTWARE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. EACH OF MIXMASTER, ITS AFFILIATES AND ITS LICENSORS, EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION: OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT; OR WITH RESPECT TO THE OPERATION OR USE OF THE MIXMASTER SOFTWARE; OR OF THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, CURRENCY OR TIMELINESS OF ANY OF THE MIXMASTER SOFTWARE; OR THAT ARISES FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR TRADE PRACTICE.
NEITHER MIXMASTER, NOR ANY OF ITS AFFILIATES OR LICENSORS, REPRESENTS OR WARRANTS THAT THE MIXMASTER SOFTWARE, SERVICES OR SOFTWARE INCLUDED ON OR OTHERWISE AVAILABLE TO YOU ON OR THROUGH MIXMASTER, OR ANY SERVERS HOSTING THE MIXMASTER SOFTWARE, OR ANY E-MAIL SENT BY OR ON BEHALF OF MIXMASTER, ARE OR WILL MEET YOUR REQUIREMENTS, BE ERROR-FREE OR FREE OF VIRUSES, WILL NOT DISABLE DEVICES OR OTHER COMPONENTS, OR THAT YOU WILL HAVE SECURE, TIMELY, CONTINUOUS OR UNINTERRUPTED ACCESS TO OR USE OF THE MIXMASTER SOFTWARE, OR THAT THERE WILL BE NO ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE.
WITHOUT LIMITATION OF THE FOREGOING PARAGRAPH, MIXMASTER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY ARISING FROM OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, ANY COMPUTER VIRUS OR OTHER HARMFUL CODE OR COMPONENT, OR ANY LINE FAILURE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, CONDITIONS OR CATEGORIES OF DAMAGES, CERTAIN OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, MIXMASTER’S WARRANTIES, CONDITIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Access To And Use Of Content – Limited License
You are hereby granted, subject to these terms and conditions, a limited, revocable, non-exclusive, non-transferable, fully-paid, royalty-free license solely to utilize the Mixmaster Software as is needed for your own internal, non-commercial, non-public use (the “Mixmaster Software License”). Permitted access to and use of the Mixmaster Software is limited to your personal use of the Mixmaster Software.
Obligations And Restrictions
You must be over the age of seventeen (17) and above the legal drinking age in your country of residence to register as a user of the Mixmaster Software or otherwise submit or provide any personally identifiable information to Mixmaster.
By your access to or use of the Mixmaster Software, you agree that you will not yourself, and will not induce, assist, or cause others to, directly or indirectly, for any purpose, to any extent, by any means or in any form, format or medium whatsoever, whether now known or hereafter developed (including, but not limited to, via the Internet or any other public or private computer, communications or data network): disassemble, decompile, reverse engineer or otherwise attempt to derive or extract the source code of any of the software comprised by the Mixmaster Software; access, use, disclose, publish, transmit, display, distribute or provide or permit access to, in any way for any commercial purpose, the Mixmaster Software, or any modifications, adaptations, translations, summaries, abstracts or derivative works or materials thereof; disclose, publish, transmit, display, distribute, or provide or permit access to any user name or identification, password, or access code, any Mixmaster Software content marked as “Confidential”, or any restricted-access portion of the Mixmaster Software (each of the foregoing herein referred to as Mixmaster “Confidential Information”), in whole or in part, to any person or entity; access, use, disclose, publish, transmit, display, distribute, provide or permit access to any Confidential Information, in whole or in part; access, use, disclose, publish, transmit, distribute, display or provide or permit access to, the Mixmaster Software, in whole or in part, (i) to the detriment of Mixmaster, (ii) to, on behalf of, or for the benefit of any third party, or (iii) for purposes of any public or commercial use or exploitation, including, but not limited to use by or for the benefit of any competitor of Mixmaster; transfer, license, sublicense, sell, lease, rent, loan, trade, exchange or make any other public or commercial use or exploitation of the Mixmaster Software, or any modifications, adaptations, collections, compilations, recompilations, translations summaries, abstracts or derivative works or materials thereof, in whole or in part; access or use the Mixmaster Software in any unlawful manner or for any unlawful purpose; damage, disrupt, disable, inhibit, restrict, overload, overburden, or interfere with the operation, or others’ access to or use, of the Mixmaster Software; attempt to gain any unauthorized access to the Mixmaster Software; access the Mixmaster Software by means other than the interface provided by Mixmaster or through the platforms or portals of persons expressly authorized to link to the Mixmaster Software; or conduct any data mining or harvesting, or use any robot, web crawler or other data mining, gathering or extraction software, tool, method or technology to obtain access to, or information, data or other content from or through, the Mixmaster Software; or create or maintain any link between another web site and this website or the Mixmaster Software or any part hereof without Mixmaster’s prior written approval.
From time to time, other web sites and sources may provide hypertext links (“Links”) or otherwise refer to the Mixmaster Software. Similarly, the web site may include links or references to web sites or sources provided by companies or persons other than Mixmaster. No such Links or references shall imply any relationship or connection between Mixmaster and the owner or operator of any other web site or other source, or any sponsorship, endorsement, representation or warranty by Mixmaster of or respecting such web site or other source, or its contents, owner, operator, data privacy policies or business practices. Mixmaster has no responsibility or liability to you arising out of or in connection with any such non-Mixmaster web site or source, including, but not limited to, any use of or reliance upon any associated content, product, service or transaction. You understand, acknowledge and agree that all access to and use of any such non-Mixmaster web site or source by you shall be at your own risk.
You may be required to register with and/or set up an account to use the Mixmaster Software. In this connection, you may be required to establish a user identification name, password, or other registration information (collectively, “Registration Information”). You agree and represent that all Registration Information that you provide is current and accurate. You further agree not to falsely identify yourself in any manner with respect to the Registration Information. You are responsible for maintaining the confidentiality of the Registration Information, and you agree to change any Registration Information which you have reason to believe is no longer secure (e.g. caused by identity theft). You are solely responsible for all activity on your account, including activity of any person who uses your Registration Information, with or without authorization, to access the Mixmaster Software. Your Registration Information may not be sold, licensed, or otherwise transferred without the written approval of Mixmaster.
User Generated Comments Not Endorsed By Mixmaster
Trademarks And Rights Of Publicity / Privacy
The trademarks, service marks, personal names, personal images, logos, domain names, page headers, button icons, graphics, color schemes, photographs and trade dress (“Marks”) displayed in the Mixmaster Software are the exclusive property of Mixmaster, its licensors, or third parties. You are not permitted to use these Marks without the prior written consent of Mixmaster or such third party that owns the Mark.
Copyright And Other Intellectual Property Rights
You will, and hereby do, irrevocably assign to Mixmaster and its successors and assigns all right, title and interest (including all copyrights and other intellectual property rights) in, to and under, all and any portion of any writings, expressions, compilations, recompilations, copies, reproductions, modifications, translations, improvements, edits, enhancements, adaptations, customizations, summaries, abstracts or derivative works, information or materials originated, created, compiled or developed by you or on your behalf that use or incorporate, or are based on or derived from, all or any portion of the Mixmaster Software (including any Confidential Information) in any electronic, written or other form, manner or medium now known or hereafter developed (“Mixmaster Software Modifications”). If any other person is deemed to possess any right, title or interest in, to or under any such Mixmaster Software Modifications (the “Author”), you will cause the Author irrevocably to assign all such right, title and interest to Mixmaster and its successors and assigns, or, to the extent that any such right, title or interest is inalienable under applicable law, you will cause the Author to waive and agree not to exercise any such right, title or interest against Mixmaster, its affiliates or licensors. If and to the extent that the foregoing assignments and waiver are deemed unenforceable or invalid, or otherwise fail to transfer to Mixmaster and its successors and assigns any such right, title or interest in respect of any such Mixmaster Software Modifications, you will and hereby do grant or cause to be granted to Mixmaster and its successors and assigns a fully-paid, royalty-free, exclusive, perpetual, irrevocable, transferable, worldwide right and license, with the right to sublicense, to use, copy, reproduce, modify, adapt, translate, collect, compile, recompile and prepare summaries, abstracts, derivative works, improvements, and enhancements of such Mixmaster Software Modifications, and to make any public, commercial or other use or exploitation of the foregoing, without identifying the Author or seeking the Author’s prior consent.
You further agree: To do nothing inconsistent with any of Mixmaster or its licensors’ intellectual property or other proprietary rights in respect of the Mixmaster Software or Confidential Information, or with any license or restrictions hereunder; not to delete, edit, efface, mask, obscure or alter any part or aspect of the Mixmaster Software, or any copyright, trademark, patent, or other proprietary or confidentiality notice used or posted by Mixmaster in connection therewith; and to take all reasonable steps (including, without limitation, the preparation, signing and delivery of any assignments and other documents or instruments) at Mixmaster’s request to perfect, evidence, record or enforce Mixmaster’s or its affiliates’ or licensors’ intellectual property or other proprietary rights in respect of the Mixmaster Software or Confidential Information, Mixmaster Software Modifications or any modifications, adaptations, collections, compilations, recompilations, translations, summaries, abstracts or derivative works or materials thereof.
You represent, warrant and covenant that: You own or otherwise control all rights to the Submissions you provide or make available to the Mixmaster Software, and have all rights, power and authority required to provide such Submissions to the Mixmaster Software and to assign your rights in the Submissions to Mixmaster; all such Submissions by you are and will be true, current and accurate; no use of your Submissions will violate or infringe any rights of, or cause any injury to, any person or entity; you are solely responsible and liable for any Submissions you provide or make available to the Web Site (including for any loss or damage Mixmaster or others may suffer as a result of or in connection with any such Submission); Mixmaster shall have no responsibility or liability to you or any third party with respect to any Submissions. Mixmaster reserves the rights (but shall have no obligation): (a) to save and archive any Submission, (b) to disclose any Submission or other information as necessary or appropriate to comply with any law, regulation or governmental request or legal process, to operate the Mixmaster Software, to respond to claims that any Submission or Mixmaster Software content violates any property, privacy, publicity or other right of any person or entity, or to protect the rights, property or safety of Mixmaster or third parties; and © to update, screen, monitor, filter, review, remove and/or edit any content or feature of the Mixmaster Software, including, but not limited to, any Submissions; in each case ((a) through ©) with or without notice to you.
Mobile Terms And Conditions
Mixmaster provides the Mixmaster Software on mobile devices (“Mobile Content Program”) such as a cell phone, hand-held computer, personal digital assistant, and similar devices that would be compatible with such programs (“Device”). The following terms and conditions govern your use of the Mobile Content Program. Your use of the Mobile Content Program will constitute your agreement to comply with the terms and conditions provided below.
The cell phone number or any other information provided to Mixmaster to activate the Mobile Content Program is registered in your name. You agree that you will not initiate messages from the Mobile Content Program to any other person or entity and will only transmit to a Device registered to you.
All communications initiated by you in connection with the Mobile Content Program may be charged a fee by your carrier. Fees charged by a carrier for Mobile Content Program communications or transmissions are your responsibility.
In order for the Mobile Content Program to operate, you must own a Device that is compatible with Mixmaster’s Mobile Content Program and have the necessary subscription plan with your carrier. It is your responsibility to own the appropriate Device, software and carrier subscription plan to receive Mixmaster’s Mobile Content Program.
You agree not to alter, add, remove or otherwise modify the format or branding of the content provided through the Mobile Content Program. All of the content provided through the Mobile Content Program is owned by Mixmaster, its affiliates or licensors, and is protected by intellectual property laws. Your use of the Mobile Content Program is governed by the Mixmaster Software License provided herein.
The Mobile Content Program is provided on an “AS IS” basis and is governed by the Disclaimer of Warranties; Limitation of Liability provided herein.
All fees set forth and paid by you are solely in exchange for access to the Mixmaster Software. In no way are these fees paid considered payment for the sale or license to resell the Software, and, furthermore, any use of the Mixmaster Software by you in furtherance of these Terms will be considered merely in support of the purpose of these Terms.
Your Liability And Indemnification Obligations
Mixmaster makes no representation that the Mixmaster Software is available to or appropriate for access or use outside the United States of America. Any access to or use of the Mixmaster Software in or from any territory or jurisdiction in which it is unlawful to do so is strictly prohibited. You agree that all such acts are at your own risk and that you will comply with all applicable rules, regulations and laws, including, without limitation, all laws and regulations in respect of export control.
Copyright and Intellectual Property Notice Policies To file a notice of copyright infringement respecting any Mixmaster Software content, you must provide a written notice to us that complies with applicable law (including, in the U.S., the Digital Millennium Copyright Act). To do so, please send a DMCA Takedown notice to firstname.lastname@example.org.
Disputes; Binding Arbitration; Waiver of Right to Class Action
Terms of Agreement; Severability
No failure or delay of Mixmaster to exercise or enforce any right, remedy or privilege shall constitute or result in any loss or waiver of that, or any other, Mixmaster right, remedy or privilege, in whole or in part.
Survival of Terms